Filed 8/25/20 P. v. Pinho CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN MICHAEL PINHO,

Defendant and Appellant.

 A157247

 (Del Norte County

 Super. Ct. No. CRF 19-9044)

Following a jury trial, Kevin Michael Pinho was convicted of driving or 

taking a vehicle without consent and sentenced to seven years in state prison. 

On appeal, he contends (1) a one-year sentence enhancement due to his 

service of a prior term in prison must be stricken due to a recent amendment 

to Penal Code1 section 667.5, subdivision (b); and (2) his trial counsel was 

ineffective for failing to object to the imposition of fines, fees, and 

assessments. We agree the prior prison term enhancement must be stricken 

and remand for resentencing.

BACKGROUND

In July 2018, California Highway Patrol (CHP) Officer Tyler Krueger 

and his partner were patrolling Highway 101, just south of the Oregon 

border. They pulled over a van going above the speed limit. The driver, 

1 All undesignated statutory references are to the Penal Code.
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identified as Pinho by Officer Krueger at trial, did not have a driver’s license, 

proof of insurance, or vehicle registration. He gave Officer Krueger a couple 

of different names and driver’s license numbers, none of which could be 

verified through CHP dispatch. Pinho said his aunt loaned him the van.

When the officers were unable to confirm Pinho’s identity, they placed 

him under arrest and began an inventory search of the van. During the 

search, Pinho fled. Officer Krueger chased him on foot and detained him 

about a quarter of a mile from the traffic stop.

CHP officers found paperwork in the van indicating it was registered to 

Robert H. in Eugene, Oregon. When he was contacted, Robert H. told officers 

that he was in the process of reporting the vehicle as stolen. At trial, 

Jennifer H., the van’s coowner, said she had parked the van in the driveway 

of her home in Port Orford, Oregon and left the keys in the cup holder. The 

next morning, the van was missing and she reported it stolen. She did not 

know Pinho and had not given anyone permission to drive the van.

Pinho testified that around the time of his arrest, his mother called him 

in Port Orford and asked for help with his father, who was in the hospital in 

Eureka suffering from late-stage leukemia. An aunt told him he could 

borrow a vehicle that she had to drive to Eureka. She gave him keys to a 

van, which she said she borrowed from an acquaintance. 

Pinho testified that he did not steal the van and that his willingness to 

pull over showed that he did not know the van was stolen. He lied about his 

identity to Officer Krueger because he was on parole in Oregon, and if 

arrested, he would not have been able to see his father before he died. He 

fled after arrest because he was not in the “right state of mind” due to the 

stressful situation with his father. 
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Pinho was charged with felony driving or taking a vehicle without 

consent under Vehicle Code section 10851, subdivision (a), and six 

misdemeanor offenses. The information alleged a sentence enhancement 

pursuant to section 667.5, subdivision (b) because Pinho had served a prior 

term in prison, and another enhancement for his conviction of a prior strike 

offense pursuant to section 1170.12, subdivision (c)(1). Both were based on a 

2007 robbery conviction. Pinho admitted six misdemeanor offenses and went 

to trial on the felony charge. The jury found him guilty. 

The trial court sentenced Pinho to seven years in state prison. It

imposed the aggravated term of three years, doubled for the prior strike 

pursuant to section 1170.12, subdivision (c)(1). It also imposed a one-year 

enhancement pursuant to section 667.5, subdivision (b) for Pinho’s prior

prison term. The sentences for the misdemeanors ranged from three months 

to one year each to run concurrently. The court imposed $344 in restitution 

to Jennifer H., as well as a $40 court security fee (§ 1465.8), a $30 conviction 

assessment (Gov. Code, § 70373), and a $300 restitution fine (§ 1202.4, 

subd. (b).) Pinho appeals. 

DISCUSSION

A. Senate Bill No. 136

Pinho contends that, following the enactment of Senate Bill No. 136 

(2019–2020 Reg. Sess.) (Senate Bill 136), his one-year enhancement for a 

prior term in prison pursuant to section 667.5, subdivision (b) must be 

stricken. 

Senate Bill 136, which became effective on January 1, 2020, amended 

section 667.5, subdivision (b) to limit the enhancement to prior imprisonment

for specified sexually violent offenses. (See People v. Lopez (2019) 

42 Cal.App.5th 337, 340–341.)
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The parties agree that Pinho’s prior imprisonment for burglary no 

longer qualifies under section 667.5, subdivision (b), so his prior prison term 

enhancement must be stricken. We also agree. (See People v. Jennings

(2019) 42 Cal.App.5th 664, 681–682.) Accordingly, Pinho’s one-year prior 

prison term enhancement imposed pursuant to section 667.5, subdivision (b) 

is stricken.

The People state that we should remand for full resentencing because 

the court did not impose the maximum possible sentence, as indicated by the 

concurrent sentences imposed for the six misdemeanors. Pinho asserts no 

view regarding a possible remand. “[W]hen part of a sentence is stricken on 

review, on remand for resentencing ‘a full resentencing as to all counts is 

appropriate, so the trial court can exercise its sentencing discretion in light of 

the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893.) 

Remand for resentencing is proper.

B. Ineffective Assistance of Counsel

Pinho contends his trial counsel provided deficient representation by 

failing to object to the imposition of fines, fees or assessments at sentencing. 

He contends at the time of sentencing, controlling law required a hearing on 

his ability to pay prior to the imposition of such fines and assessments, citing 

People v. Dueñas (2019) 30 Cal.App.5th 1157. In Dueñas, the court held an

indigent defendant, who was a homeless mother of two young children and 

suffered from cerebral palsy with a history of unpaid court-ordered 

assessments, was entitled to a hearing on her ability to pay before the trial 

court imposed new assessments, fees, and fines. (Id. at pp. 1160–1161, 1168.) 

Pinho states that reasonably competent counsel would have invoked Dueñas 

and requested the trial court to strike the restitution fine, criminal conviction 
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assessment, and court operations fee because the record showed he had no 

ability to pay them. 

In light of our remand for full resentencing, we shall not address 

Pinho’s ineffective assistance claim. On remand, Pinho is free to assert the 

arguments he believes his trial attorney should have made. (See People v. 

Hill (1986) 185 Cal.App.3d 831, 834 [“When a case is remanded for 

resentencing by an appellate court, the trial court is entitled to consider the 

entire sentencing scheme.”].)

DISPOSITION

The one-year sentence enhancement imposed pursuant to section 667.5, 

subdivision (b) is stricken and this case is remanded for resentencing. On 

remand, Pinho may object to the imposition of fines, fees, and assessments 

imposed by the trial court and request a hearing on his inability to pay them. 

After resentencing Pinho, the trial court is directed to issue an amended 

abstract of judgment and forward a certified copy thereof to the Department 

of Corrections and Rehabilitation. In all other respects, the judgment is 

affirmed.
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____________________________

Siggins, P. J.

We concur:

_____________________________

Petrou, J.

_____________________________

Jackson, J.

A157247

People v. Pinho